Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

Of course, there are moral objections to the death penalty. That, however, can get mixed up with abortion rights; with the right of the state to declare war, or to use deadly force for enforcement of its laws; and it becomes an exercise in line-drawing. I am against the death penalty on moral grounds because I do not believe that it is the place of the State to exercise vengeance... and that is the only true distinction between a life-without-parole penalty and the death penalty. Neither is it the place of the State to step into the shoes of a victim or a victim's family; indeed, for every family member who achieves "closure" through the State-imposed death of the assailant, there are others for whom that either provides no closure or provides harm.

One can differ on the moral objections to the death penalty; it's very hard to differ on procedural objections. If the State expects to maintain the moral standing to kill individuals in its name as a penalty, the procedures leading up to that penalty had darned well better be perfect; there's no way to undue a lethal injection. The state of Illinois has a horrible record in that area, and at that it's better than most of the former Confederate states — and not just on racial grounds, either, although that's certainly a major problem. I cannot say it better than did a Supreme Court justice who initially supported the death penalty.

On February 23, 1994, at approximately 1:00 a.m., Bruce Edwin Callins will be executed by the State of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings. The witnesses, standing a few feet away, will behold Callins, no longer a defendant, an appellant, or a petitioner, but a man, strapped to a gurney, and seconds away from extinction.

Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the unenviable task of determining whether some human being is to live or die. We hope, of course, that the defendant whose life is at risk will be represented by competent counsel — someone who is inspired by the awareness that a less than vigorous defense truly could have fatal consequences for the defendant. We hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedural rules, and appear before a judge who is still committed to the protection of defendants’ rights — even now, as the prospect of meaningful judicial oversight has diminished. In the same vein, we hope that the prosecution, in urging the penalty of death, will have exercised its discretion wisely, free from bias, prejudice, or political motive, and will be humbled, rather than emboldened, by the awesome authority conferred by the State.

But even if we can feel confident that these actors will fulfill their roles to the best of their human ability, our collective conscience will remain uneasy. Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all[;] and, despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake. This is not to say that the problems with the death penalty today are identical to those that were present 20 years ago. Rather, the problems that were pursued down one hole with procedural rules and verbal formulas have come to the surface somewhere else, just as virulent and pernicious as they were in their original form. Experience has taught us that the constitutional goal of eliminating arbitrariness and discrimination from the administration of death, can never be achieved without compromising an equally essential component of fundamental fairness — individualized sentencing.

It is tempting, when faced with conflicting constitutional commands, to sacrifice one for the other or to assume that an acceptable balance between them already has been struck. In the
context of the death penalty, however, such jurisprudential maneuvers are wholly inappropriate. The death penalty must be
imposed “fairly, and with reasonable consistency, or not at all.”

To be fair, a capital sentencing scheme must treat each person convicted of a capital offense with that “degree of respect due the uniqueness of the individual.” That means affording the sentencer the power and discretion to grant mercy in a particular case, and providing avenues for the consideration of any and all relevant mitigating evidence that would justify a sentence less than death. Reasonable consistency, on the other hand, requires that the death penalty be in?icted evenhandedly, in accordance with reason and objective standards, rather than by whim, caprice, or prejudice. Finally, because human error is inevitable, and because our criminal justice system is less than perfect, searching appellate review of death sentences and their underlying convictions is a prerequisite to a constitutional death penalty scheme.

On their face, these goals of individual fairness, reasonable consistency, and absence of error appear to be attainable: Courts are in the very business of erecting procedural devices from which fair, equitable, and reliable outcomes are presumed to flow. Yet, in the death penalty area, this Court, in my view, has engaged in a futile effort to balance these constitutional demands, and now is retreating not only from the Furman promise of consistency and rationality, but from the requirement of individualized sentencing as well. Having virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty, the Court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere esthetics, and abdicating its statutorily and constitutionally imposed duty to provide meaningful judicial oversight to the administration of death by the States.

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated
simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of proce-
dural rules or substantive regulations ever can save the death penalty from its inherent constitutional de?ciencies. The basic question — does the system accurately and consistently determine which defendants “deserve” to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, relevant mitigating evidence to be disregarded, and vital judicial review to be blocked. The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

* * *

The fact that we may not be capable of devising procedural or substantive rules to prevent the more subtle and often unconscious forms of racism from creeping into the system does not justify the wholesale abandonment of the Furman promise. To the contrary, where a morally irrelevant — indeed, a repugnant — consideration plays a major role in the determination of who shall live and who shall die, it suggests that the continued enforcement of the death penalty in light of its clear and admitted defects is deserving of a “sober second thought.”

* * *

[O]nly a bare majority of this Court could bring itself to state forthrightly that the execution of an actually innocent person violates the Eighth Amendment. This concession was made only in the course of erecting nearly insurmountable barriers to a defendant’s ability to get a hearing on a claim of actual innocence. Certainly there will be individuals who are actually innocent who will be unable to make a better showing than what was made by Herrera with out the benefit of an evidentiary hearing. The Court is unmoved by this dilemma, however; it prefers “finality” in death sentences to reliable determinations of a capital defendant’s guilt. Because I no longer can state with any confidence that this Court is able to reconcile the Eighth Amendment’s competing constitutional commands, or that the Federal Judiciary will provide meaningful oversight to the state courts as they exercise their authority to inflict the penalty of death, I believe that the death penalty, as currently administered, is unconstitutional.

Not just as it was administered in 1994, Justice Blackmun; as it ever can be administered where:

Jury duty is seen and treated as a burden instead of a privilege

Judges are elected officials, and often have "tough on crime" platforms

So are prosecutors

Defense counsel are overworked, underpaid, inexperienced, and prohibited by law and policy from attacking the motivations of the prosecution (both in particular matters and in general)

Investigative techniques focus on "the usual suspects" in virtually every capital-eligible matter... especially when the victim is somehow connected to either law enforcement or the local powers that be

Race and class continue to play a role in the criminal justice system

I was a commanding officer for the better part of a decade, and have considerable personal experience with the struggles of those who have the discretion to determine how individual criminal matters get resolved. I did enough other investigations (both for the IG and... otherwise) to understand far too much about how process and preconception lead to prejudgment... the root word of prejudice. One demonstrably innocent person killed with malice aforethought by the State is too many; the less said about consistency, the better.

So thank you, Governor Quinn, for doing the right thing. Now get back to repairing other aspects of this state's government!

The Fine Print

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Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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